Advisory Opinions - Golden Handcuffs

Episode Date: May 26, 2020

David and Sarah discuss the growing partisan divide over the handling of the coronavirus pandemic, the legal fights over church openings, Rachel Maddow's SLAPP lawsuit victory, and the pros and cons of going to law school. Show Notes: -Harvard false positive/negative rates -Reuters R vs. D county study -The Public's Judgement of Their State's Performance During the COVID-19 Outbreak -Columbia study -JP Morgan findings -Public Sees Harm in Exaggerating, Downplaying COVID-19 Threat -David's piece Coronavirus and the Fog of War -David's piece The Police Power of the States to Control a Pandemic, Explained -Church reopening rules -Lighthouse SOI -New Jersey lawsuit -SLAPP opinion Learn more about your ad choices. Visit megaphone.fm/adchoices

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We're going to be talking about the growing partisan divide between Republicans and Democrats over the handling of the pandemic. We're going to talk about religious liberty in the pandemic, as now cases are snaking their way. No, that's probably not right. Rocketing their way up to the Supreme Court with competing with circuit splits now emerging in the treatment of religious liberty and with the Trump administration urging categorizing churches as essential services. We're also going to talk about a little thing called a slap suit and Rachel Maddow. So I'm just teasing that a little bit right there. And Sputnik, slap suit, Rachel Maddow and Sputnik. It's an interesting tale. And we're going to wind up with maybe an argument about law school. Maybe. Oh, we are. Okay. Oh, we will argue. Arguments will be had.

Okay, excellent. Because my advice to you is basically just go to law school. That's terrible advice. Okay. So you don't even need to listen to the podcast. You've got it. Like, that's where we're going to end up. Now, there's modifications to my just go to law School. It's not a blanket recommendation for every person. Always with the nuance, David. But I'm a pro-law school person. Very, very, I'm vehemently pro-law school. But we'll save it.

We'll save it. Save it for the end. But before we get started, we just want to thank you again for listening. And also remind you to please subscribe to this podcast on Apple Podcasts, rate us on Apple Podcasts. And also, if you're not already a member of the Dispatch, the Dispatch.com, go check it out and consider becoming a member. But let's dive in, Sarah. OK, you have some news for us and you like numbers about the gap between Democrats and Republicans on the pandemic. What is going on? So let's start with some Reuters numbers from

last week. They did an interesting study. And then I'll wrap with some Gallup numbers from today. Super interesting to me. So Reuters last week did this cool thing where they looked at counties that voted for Hillary Clinton versus counties that voted for Donald Trump. And what they found was that in counties that voted for Clinton in the 2016 presidential election, there were 39 coronavirus deaths per 100,000 residents, but only 13 deaths for every 100,000 residents in counties that voted for Donald Trump. Now, some caveats. Obviously, New York City skews this because that is an average, not a median. Right. And in general, I mean, we know some of what's causing this. It's the urban versus rural divide. Urban places are more likely to vote Democrat. And so, you know, I understand where

some of that comes from. But before you dismiss it, look at a state like Kansas, and the death rate was seven times higher in the two counties that backed Clinton than in the rest of the state. Right. There were exceptions. Texas and Nebraska had higher Democratic death tolls. were exceptions. Texas and Nebraska had higher Democratic death tolls. Sorry, higher Republican death tolls overall in those counties. But overall, the higher Democratic death tolls held true at the county level in 36 of 50 states, which is significant to me. Yes. And my point on this was this is going to have trickle down effects in all sorts of ways. It's going to have effects on vote by mail. It's like how people vote, but it's also going to have effects on how they see how the response went, how they judge reopening versus staying closed, how they see

studies that come out of who to blame for what. You know's a partisan effect in the virus death, there's going to be then all of these unintended consequences that stem from that. And that brings me to my Gallup numbers from today. Not surprisingly then, they released these numbers today. The poll was conducted several weeks ago. More than twice as many Democrats as Republicans, quote, strongly agree that coverage downplaying the threat of coronavirus is harmful. By contrast, twice as many Republicans as Democrats, quote, strongly agree that coverage exaggerating the threat is harmful. And that's where we're headed, David. The threat is harmful. And that's where no, no, really, the red states are going to get hit harder because of churches and,

you know, sports gatherings and less public health in some of the rural parts of the states. And that but that was when you look back on it, the initial common sense first pass, wait a minute, dense populations are going to suffer more from an infectious disease. That just basic common sense presumption proved to be correct. And Charles Murray has this really interesting post at AEI that's entitled, Dealing with the Pandemic is Not Entirely Rocket Science. It's entitled Dealing with the Pandemic is Not Entirely Rocket Science. And he has this chart of coronavirus fatalities or coronavirus cases and population density.

And it's really remarkable to see the increase, the dramatic increase in reported cases, the more dense the population. And we know one of the fundamental underlying dynamics of American politics is cities are blue. The rural areas and ex-urban areas, unless it's a majority, minority, rural, or ex-urban area, are red. And the suburbs are kind of up for grabs. And it feels like the pandemic has descended upon this country and as replicate and its effect has been so disparate that it has amplified and reinforced, unlike a lot of sort of external threats kind of unify us. This one is amplified and reinforced existing divisions, even right down to the suburbs kind of being in the middle. I know. Isn't that funny? It is. Slash not at all funny. Yeah. Yeah, it's exactly. It's

almost as if this thing was designed to kind of continue the process of tearing us apart. Yeah. I mean, the last Politico Harvard School of Public Health survey found a 25 point partisan gap when respondents were asked whether they believe the pandemic is a, quote, serious problem in their state. And, you know, 61 percent of Republicans now say they support reopening non-essential businesses in their state, which is double the percentage of Democrats. But when you just look at that number in isolation, like, oh, Republicans want to reopen and Democrats don't, you miss a lot of what's driving that number. Republican counties are experiencing a different reality than Democratic counties. They're experiencing different death rates. And if you don't know someone who's been affected by this virus, no doubt I can see why you might want to reopen non-essential businesses more quickly. And vice versa for Democrats.

If you've known three people who have died, you're like, you know what? Hit the brakes a little. Yeah. You know, it's there's that old saying where you stand is based on where you sit. And and look, if the pain that you are feeling from the pandemic is economic pain exclusively. That's right. And you have not experienced or you've not seen anyone or know of anyone who suffered or died from this virus. It is difficult just as a human matter to not look at all of the economic wreckage all around you

and say, this has to end like this. We have to do something about this, the pain that we are experiencing right now. And then conversely, if you've maybe been sick yourself or, you know, two or three people have been sick or, you know, families that have been devastated, you hear that and you're like, what kind of person are you? Do you not see what is going on? And it's it's weird. are you? Do you not see what is going on? And it's weird. This is so often the case, I feel like, in this post-Trump world. I feel like I have a foot in both places because I live in a red part of the state, which has not been seriously impacted. We've had some cases, but it's not been seriously impacted. A lot of people I

know have faced real economic hardship as a result of this. But then again, I also know a ton of people who've had the virus, mostly in New York and in other places, but even here in the more dense urban areas of Tennessee. And so I see the economic devastation, and I see and I have a whole set of friends who have no contact with the virus, but they have abundant experience with the economic consequences. And another whole set of friends who have experienced the virus firsthand. So this got me thinking. There were these two interesting studies that sort of made their way around, you know, the Twitterverse, some news stories late last week. And I read them and I tried to put myself in the mindset of someone who lived in each of those counties and then reread them. Like, okay, I live in New York City

and I read this. Okay. Now I live in, you know, rural Texas where I grew up and read this. And so let me read them to you and like, try that little experiment on yourself to the extent you can, because I think these studies aren't contradictory, but they're different. Okay. Columbia University has estimated that if the country had begun locking down cities and limiting social contact on March 1st, two weeks earlier than most people started staying home, the vast majority of the nation's deaths, about 83%, which is stunning, would have been avoided.

Which is, I mean, it was a, like, stop you in your tracks study. Yeah. Okay, let me read you the second study. JP Morgan has done a study to show that infection rates have declined, not increased, in states where lockdowns have already ended, meaning that the pandemic and COVID-19, in their view, likely has its own dynamics unrelated to often inconsistent lockdown

measures that were being implemented. And so, you know, imagine being in a red state and seeing the JP Morgan one, and you're like, yep, damn right. That fits with my experience. Yeah. And then imagine being in Manhattan and reading the Columbia University run and being like, wow,

if we had just done this two weeks earlier, you know, X person might be alive today. Yeah. Yeah. Like my grandmother, my grandfather might be alive today. Yeah. Yeah. Like my, my grandmother, my grandfather might be alive. My father, my mother. And I think vice versa that if, you know, I think some people looked at the Columbia study and were like, that can't be right. And also like, we just weren't going to shut down two weeks earlier. So

what a could have shut up moving forward. And then I think others see the JP Morgan study and just doubt it right off the bat, because that doesn't make sense with what they're experiencing. And I'm with you. I feel like I read those and find them interesting to run that thought experiment on myself, because I don't have a great sense of where this all will sort out. Well, you know, I wrote a piece, gosh, this was early March, I believe, that was called Coronavirus and the Fog of War. And, you know, I talked about how difficult it is

to get a true situational awareness in the midst of crisis. Sure. Incredibly difficult. I mean, like when I was in Iraq, you would have an ambush of a convoy and the total number of people engaged Sure. away. You know, I mean, just to figure out, you know, what was happening, who had attacked, what transpired, who casualties were, what was their condition, what was the need for assistance or not. I mean, just sorting everything out in this like micro engagement. Now, I know it's very different. War is not a pandemic, but crisis is a difficult time. It is difficult in a worldwide crisis

with a complex interplay of a disease and an economy to figure everything out and get it correct. And I was talking to somebody yesterday who is in the pharmaceutical industry, and we were just sort of talking about how our understanding of the virus itself has been evolving back and forth and over the course of the last several weeks. And I just thought, you know, two years from now, we may look back and say conventional wisdom, what we took as conventional wisdom now, which is wrong, just completely wrong. And there's so much we don't know about how this is being transmitted, why some people are more likely to get it. Uh, the death tolls they're now, you know, I read one thing recently that the clotting issue is much, much more important

than the respiratory issue and that they initially thought in terms of predicting really adverse outcomes. And, you know, listeners, as you know, I'm reading all of this with a certain intensity because we are now T minus 17 days till little dude. Yes. So, you know, should we get an antibody test? Should you know, they'll test me, of course, when I walk into the hospital regardless. But the antibody test has a high false positive, but the COVID test has a very high false negative. Yeah. I just read Harvard put out this thing, couldn't be, I mean, it's helpful, don't get me wrong,

but like couldn't be less helpful when you're in my shoes, that four days after exposure, the COVID test has a 40% false negative. Jeez. Three days after developing symptoms, it still has a 20% false negative. That's remarkable. Right. So like my pregnant friends and I on this little text chain are just throwing our hands up. Yeah. But you know, the emerging consensus, as of now, the emerging consensus really seems to be that the more you limit these close quarters indoor activities,

the better off you are. It's the indoor. Which makes sense. Yeah. Which of course, again, a lot of this sort of, it's like, oh yeah, the common sense thing I thought at the beginning when you're thinking about, oh, how do you catch like, say the flu, seems to rear its head again and again. And there seems to be

less concern about exposed surfaces. Well, that's good because how do you not touch stuff? As someone who is going to go on a very special date night tonight with her husband to Chipotle and eat it on the hood of his car, yeah, I'm really pumped about the surface thing because pregnant lady Chipotle is the best Chipotle, you guys.

Well, we've been enjoying Chipotle as well. That was one of our first takeouts. Yeah, it was Chipotle. Wow. Yeah, look how much we're agreeing enjoying Chipotle as well. That was one of our first takeouts. Yeah, it was Chipotle. Wow. Yeah. Look how much we're agreeing before we disagree later today. So true. Yeah.

So true. Okay, what's next? Well, speaking of indoor spaces that are highly likely to spread the virus, let's move to the church issue. Let's. This one is thorny. This one is tough. Okay, so early in the coronavirus, in the onset of the pandemic, I wrote a piece, The Police Powers of the States to Control Pandemics Explained. states to control pandemics explained. And I was explaining why the bans on mass gatherings that were locking into place in state after state after state as the pandemic was on that power move

upwards were constitutional. There is a compelling governmental interest in controlling the pandemic because what we knew about the spread being in person in large gatherings, this was not just the least restrictive means, but maybe the only real means that we knew of at the time to put the clamps on it. And this applied not just to churches, but all mass gatherings that applied to the draconian lockdowns. And I gave my unqualified agreement with that, that there was really no other arguments and that people saying there were other arguments were simply trying to get, you know, retweets. Yes, exactly. And so, but the way this works is not that if in, say, April 1, there is a compelling governmental interest with that is being satisfied by least restrictive means, that that is also the case for June 1. Conditions change. And here we are. And here we are. And so what's the really, here's the tension. Here's the legal tension in a nutshell. So the curve is

flattened. As you noted, there was the JP Morgan study that says in the States where things are opening, the, uh, infection rate is continuing to decline. And so you have a lot of promising indications of, uh, that we're on the other side of at least this wave of the virus. So the economies are starting to open up, which means restaurants, which means in some places, gyms, which means barbershops, hair salons, which means retail outlets. And not just retail, it means law firms. It means just businesses, regular businesses. Yes. But in most places, it doesn't mean churches. But in most places, it doesn't mean churches. And so there's still churches, even if they say we're going to limit our capacity, even if you say we're going to social distance, even the churches and all other mass gatherings,

not in the specific categories opened, are still banned. And what does that mean legally? Lawsuits. It means lawsuits, David. Boku. Boku lawsuits. So I'll tell you where I stand on this, Sarah, as a constitutional matter, and you tell me if you think I'm wrong. Okay.

So you have two legal regimes in operation here. So you have two legal regimes in operation here. One is the legal standard under RFRA, Religious Freedom Restoration Act cases, which is statutory. And that is that to substantially burden-free exercise, there has to be a compelling governmental interest implemented through the least restrictive means. My own belief is that, and I agree with the Fifth Circuit and the Sixth Circuit on this point. And then let me also say that under the general background-free exercise standard, if the churches are challenging a, quote, neutral law of general applicability, quote, neutral law of general applicability, they're generally going to fail. Okay. So once you open up, this is my view, once you open up beyond narrowly defined essential services into larger commercial enterprises and establish social distancing rules and establish establish capacity rules, I don't see how it passes constitutional muster to say the gap

can sell clothes at 50% capacity, but First Baptist cannot implement the exact same social distancing rules, the exact same capacity limitations, even perhaps masking requirements, and not open as well. Now, the counter-argument to me would be that activities like singing and close social mingling under the best available scientific knowledge that we have are uniquely capable of spreading the virus. You don't sing at the gap? That's weird. I have. Well, let me put it this way. You know, when the music is being played overhead, if Bon Jovi comes on, you're in. I'm in. But otherwise, no. Mine is Weezer's remake of Toto's Africa. It came on in the Home Depot several months ago, and I danced

and sang just to embarrass my husband in public. And it worked, I will tell you. Well, so I'm going to agree with, and I have to say I've not heard that. Now we... Oh my God, wait, time out. Listeners, if you have not heard Weezer's remake of toto's africa stop stop listening go listen to that um it's incredible and it's perfect and it all came about because someone tweeted at them over and over again it's like teenager and was like please remake toto's africa and then randomly weezer was like okay we, we did it. It's so perfect. Now, see, what you're wrong about is the best remake of Toto's Africa is Pitbull's from Aquaman. Oh, God. It brings in everything that you love.

It does. It does. And especially the moment. So I'll never forget, I'm sitting in the theater and I'm still trying to figure out what to make of this movie because it's so over the top. Like it is so over the top in every conceivable way. And then they're flying over the desert to find one of the lost undersea kingdoms over the desert. And the Pitbull Africa song comes on. And I'm like, oh, that's what this is. This just takes- This is a turning point moment. Everything to 11 in ludicrousness and ridiculousness. And it's so perfect. And Jonah Goldberg needs to understand that.

If you're concerned about where this podcast is meandering, so is our producer, Caleb. His face right now is like, I'm never giving them another Monday off. I don't know what happened over this long weekend. We're sorry. Okay, back to churches. Toto's Africa by Weezer. Try it, but back to churches. So my bottom line is churches should be able to open so long as they adhere to the public health requirements mandated

for commercial entities of similar size and traffic. Sure. So maybe you need to mandate no singing in the gap, but then you can mandate it in church. Right. Right. So treat them equivalently. Your thoughts? Well, so there have been lawsuits filed along these lines in Kansas, New Mexico, Florida, Mississippi. We've talked about the Virginia one, although we can go into a little more detail in the Lighthouse case because that is one of two that the Department of Justice has filed a statement of interest in as being one of the more, you know, they get to pick and choose which ones to jump

into. So the lighthouse one is interesting because I think it is one of the more, I mean, egregious makes, it's a little hyperbolic, but on the scale, it's certainly much closer to what you're describing as a slam dunk. You're treating some businesses just so much differently than churches. The president, of course, we haven't talked about this, came out and said that he would, quote, override states that didn't allow churches to reopen. They have not cited any legal authority for overriding, but I think everyone is now assuming that he meant these DOJ statements of interest.

Statements of interest, by the way, non-lawyer friends or lawyer friends, they're sort of like amicus briefs at a district court level. So it's like this friend of the court, like, hi, we're the federal government, but at a trial level saying, we have an interest in this case, in this case, you know, trial level saying, we have an interest in this case, in this case, you know, a First Amendment interest, RFRA, whatever it may be. And we believe that, you know, we're siding with the ex side, in this case, the church's side. We'll put a link to it in this so you can go read the statement of interest, if you'd like, in the Lighthouse case. It's pretty quick, pretty easy read and pretty i think smartly done i think they picked a good one for that um but then right after that governor newsom in california

gave the green light for churches to reopen um i have to say David, to exactly what you described, I thought Newsom's church reopening guidelines were really well done. So he's letting them reopen. They have to follow the same social distancing guidelines. Uh, religious services and funerals can host a maximum of a hundred people or 25% of building capacity, whichever is lower. And then there's like these advisory things. You know, basically, we suggest that the church choir practices outside maybe, or maybe don't have practice. They all need to wear masks. Like, they're providing this, like, hey, we've thought through this. We know what a church service looks like, which I don't take that for granted. And I just think it was a very thoughtful thing he put out that will actually

allow churches to both reopen and to do so constitutionally, safely, all of that, but also smartly. I thought some of these guidelines were really helpful. all of that, but also smartly. I thought some of these guidelines were really helpful. You know, let me just, can I play grotesquely? Can I commit like probably grotesque malpractice in grotesque medical malpractice from a lawyer? Oh, medical malpractice. Yes. Yes. I try not to commit legal malpractice, but I'm free with medical malpractice. Part of me wonders if one of the solutions, particularly in the summer, given what we're learning more and more about how this virus is not spread very easily outside, is if you have more and more outside services, especially in the South, and have an early morning service, have an evening service,

have it outside, have people spread out. And I think you've got a real chance to get something going without putting together the conditions that do create that sort of possibility of a super spreader event. But as long as we're in the California world, so the Ninth Circuit last week upheld the existing California restrictions on church gatherings. And I just have to say, the legal reasoning that they used, which was very short, was, shall we say, deficient. Can I read the entire guts? this is the entire guts of the legal argument that they've that the uh a majority of the court made go for it where state action does not infringe upon or restrict practices because of their religious motivation and does

not that's not the law wait a second pardon that's not the law this is a second. Pardon? That's not the law. I'm reading. And does not, quote, in a selective manner impose burdens only on conduct motivated by religious belief, unquote. It does not violate the First Amendment, cite to Church of Lukumi Babla'i. We're dealing here with a highly contagious and often fatal disease for which there is presently no known cure. In the words of Justice Robert Jackson, if a, quote, court does not temper its doctrinaire logic with a little practical wisdom, it will convert the Constitutional Bill of Rights into a suicide pact, unquote, cite Terminal OV, City of Chicago, 1949. Bang. That kind of turns it on its head. That implies that you need to prove religious animus when in fact what you need to prove is that you're being treated differently than a non-religious

entity correct generally applicable is the rule so all you need to show is that the rule isn't generally applicable not that there was some specific religious animus. Religious animus is your slam dunk case. Sure, but that's not necessary. But that's not necessary to prove the case. I mean, so that's the Ninth Circuit. And this opinion, opinion, I'm doing air quotes, opinion, was just appealed to the Supreme Court. And so we'll see. Is it mooted out now, though? Pardon? You said that was on California, so maybe it's moot. No, what they're wanting to do, in essence, so that California has a multi-tier system of opening, and they're wanting to move churches into a different tier. Oh, okay. Yes. So it's a... Plus, I mean, I think you could argue that there is a chance of repetition

evading review if there's a second wave or something like that. You want to get this clarified now. The government has not said that they wouldn't reinstitute this, yada, yada. So, yeah, I think, and also there's a lot of churches who are beginning to rumble about defying orders, and there's an increased wave of churches that are at least threatening to defy orders, and some here and there are doing it. So I think it'd be incumbent on the Supreme Court to step in here sooner rather than later. This is not something for which we need people. If you have a reasonable rule where people can come together and worship, it is far more

likely that people will comply with those reasonable rules than if you have blanket unreasonable denials. And I think you then make it more likely that people will come together in an irresponsible way in defiance of these blanket unreasonable denials. And in fact, there was a church led by a rather famous pastor, John MacArthur, who was going to come in and have a worship service with no social distancing in defiance of unreasonable rules. Fortunately, stood down from that at the last minute.

of unreasonable rules, fortunately stood down from that at the last minute. But unreasonable laws tend to trigger, as we've talked about time and time again on this podcast, unreason tends to trigger counter-unreason. And a reasonable rule that allows people to worship in a way that is as safe as we can make it, it seems to me you're going to tamp down on an awful lot of bubbling discontent if we can get there quickly. One of the other California guidelines that they offered was places of worship to stop offering self-service food and drinks, to refrain from holding potlucks and other sort of cross-contamination activities, and to shut off the public water fountains to deter people from using them.

And I just thought to myself, man, that really takes away a lot of the reason of going to church. Wait a minute. Did you just say a ban on potlucks? Exactly, David. To the barricades, Sarah. To the barricades. What's the point? How dare you take my casseroles from me? My goodness. No, but they're so good. They're so good.

Shall we? So, you know, bottom line is, I think the more sound approach is the one taken by the Fifth and Sixth Circuits, which so far is to say, you know, just put the same rules. I'll read the quote from, and this was applying to drive-in services, but you'll see that it has reasoning beyond it. The governor and all other Commonwealth officials are hereby enjoined during the pendency of this appeal from enforcing orders prohibiting drive-in services at the Maryville Baptist Church if the church, its ministers, and its congregants adhere to the public health requirements mandated for, quote, life-sustaining entities. In other words, if you adhere to the generally applicable social distancing rules, you can conduct your worship

service. I think that's a sound legal principle. So interestingly, in New Jersey, and this was sent in by a listener, so thank you, Clay. This is going sort of to the next step. The New Jersey Republican State Committee is suing Governor Murphy there for basically distinguishing between essential and non-essential businesses in the first place. And they're claiming a deprivation of, uh, the state constitution's equal protection clause and due process saying that they, uh, by, by classifying businesses as essential and non-essential you've turned the right to private property into a privilege. I've not gotten to go read all of the briefings in this, but to your point on the more

sort of draconian you keep these rules, the more people start to strain against them. Yes. And while on April 1, distinguishing between essential and non-essential businesses made a lot of sense, on June 1, you've given people enough time to come up with a pretty interesting legal argument under the state constitution as to whether that distinction has, you know, a legal meaning, really. Yes. Yes, exactly. Exactly. And so this will extend beyond churches here in short order, is my point. Yes. Oh, absolutely. Absolutely. No question about it. Shall we move on to legal topic number two? SLAPP.

Number two, slap, slap, slap. When we say slap, we mean S.L.A.P.P. Strategic Lawsuit Against Public Participation. It is a way of filing like defamation lawsuits as a way of stifling discourse. And a number of states have anti-slap laws that if you if you file a defamation case against me, I can engage in a summary proceeding to dismiss that case and get attorney's fees. And something like that just happened. Wait, do you want to talk about the burden shifting real quick? Because I think the burden shifting is relevant to how the SLAPP system works. No, go for it.

relevant to how the slap system works. No, go for it. Okay. So, uh, everything David said is a hundred percent accurate as all things David says is, um, including the majesty of Aquaman. Yeah, sure. Well, okay. Uh, but what happens is you as the defendant have to go in and show that there was a protected speech that you were exercising, you know, your first amendment right to free speech. Once you do that, which is a really pretty low bar, then the burden shifts to the plaintiff, uh, which is a big deal, like burden shifting in court. Like if the burden shifts to you, you in trouble. And the burden shifts to the plaintiff to establish a probability of prevailing on the claims. And that's what's going to become sort of laughable in this case. Please continue, David.

Yes, yes, yes. And that burden shifting is, of course, a general burden of proof, but that's a burden shifting very early in the case before discovery. Right. And so that's what's so difficult about this. All right. So let me just read something to you and just give me a little bit of grace in how long this little segment will—this little quote is going to be. But it's important. So this is what happened. Rachel Maddow opened a segment of her show informing her viewers. Are you going to do

it? Are you going to do it in your Rachel Maddow voice? I have no Rachel Maddow voice. I think I've only seen the show twice. Okay. Well, do you have one? No, I'm not doing my Rachel Maddow voice, but I do have the Rachel Maddow glasses. So just imagine me in the Rachel Maddow glasses. So she opens a segment talking about One America News, which is this little, very small news network that Trump loves, and it loves Trump. And she called it, quote, a boutique little news outlet that is designed specifically for Trump mega fans. True.

She pointed out that President Trump previously raised OAN's ratings on Twitter and gave OAN a press pass to the White House. She then stated that she has the most perfectly formed story of the day and pointed to a Daily Beast article by Kevin Paulson. favorite, more Trumpier than Fox TV, has a full-time on-air reporter who covers U.S. politics, who is also simultaneously on the payroll of the Kremlin, unquote. The reporter is being paid to produce, quote, pro-Putin propaganda, unquote, for the Russian-funded network Sputnik. Maddow states, there is a lot of news today, but among the giblets, the news gods dropped off their plates for us to eat off the floor today. Now, how much fun did a producer have writing that sentence for the teleprompter? It's the actual news, the super right-wing news outlet that the president has repeatedly endorsed. We literally learned today that that outlet the president is promoting shares staff with the Kremlin. I mean, what? She laughs and soon after says, in this case, the most obsequiously pro-Trump right-wing

news outlet in America really literally is paid Russia propaganda. Their on-air U.S. politics reporter is paid by the Russian government to produce propaganda for that government. Now, the portion that OAN said was defamation was the phrase really really, literally, is paid Russian propaganda. And here's what's important about this, listeners. Even if you don't care about the First Amendment or Rachel Maddow or anything to do with this case, what this case ended up turning on, for the first time that I'm aware of, David, is we got to litigate the definition of the word literally in the year 2020. Yes. As that definition seems to have morphed thanks to a certain generation, maybe mine. I'm an elder millennial. And so finally, finally, we have an

opinion on the real definition of the word literally. And I'm sorry for non-millennials, but the judge found that the definition of the word literally no longer means literally. Yes. Isn't that something? It's my favorite part. Well, you know, now, isn't it Joe Biden who constantly misuses literally? I mean, in fairness, David, all of us do. Well, we all do. We all do. But now he can point to controlling, well, not controlling case authority anything but this case, but he can point to case authority that says that he's now right. Yes, it's huge. It's a big day for those who have been disrespecting the English language.

So here's the key quote. A main issue here is whether Maddow's statement was hyperbolic, because Maddow used the word literally. Plaintiff asserts it would be unreasonable to find the statement to be hyperbolic. What is noteworthy about the word literally is its conflicting definitions. The first definition of the word is in a literal sense or manner, such as in a way that uses the ordinary or primary meaning of a term or expression used to emphasize the truth. But the alternative definition is virtually used in an exaggerated way to emphasize a statement or description

that is not literally true or possible. So in other words- And again, I think everyone had fun with this. I think Rachel Maddow's producer had fun writing it, and I think the law clerk in this case had fun explaining what the word literally means to his or her generation with some Merriam-Webster help. Yes. Literally, literally does not mean literally. So here's what's weird about this case to me, David. Yes. So here's what's weird about this case to me, David. Yes.

Why, if you're OAN, why bring this case? And here's why I have questions about it. Because you, listener, may be wondering, well, is it true? Quote, plaintiff does not contest the facts reported by the Daily Beast. To the contrary, its complaint confirms and elaborates on them, conceding that for more than four years, this reporter has written approximately 1,300 articles for Sputnik and was paid about $11,500 per year for doing so, and that Sputnik News is affiliated with the Russian government. When those are the facts that you then have to concede, uh, interesting choice to proceed with this lawsuit.

Yeah. Well, it's the paradigmatic slap suit. I mean, you know, so what they're trying to do is use the lawsuit as a harassment tool. Uh, it, it is is because that that was the thing that was gobsmacking to me as well their their complaint was not about the core of matto's monologue at all because their reporter was working for sputnik she was doing it but i was just like when i was reading this i was like oh wow like that wasn't true i don don't know. This is an interesting slap case. And then I got to that paragraph where I was like, no, no, no, it's true. I was like, wait, then why are we even I don't even fully understand what we're arguing over the term literally, because literally it is pretty accurate. The only thing I think they're arguing about is whether OAN is Russia propaganda, but OAN's reporter is basically being subsidized by the Russian government.

Yes. So she says a right-wing news outlet in America really literally is paid Russian propaganda. So their statement would be that the paid Russian propagandist is their reporter. Not the network? I mean, that's some finely sliced ham there, David. Yeah, that is very, that is translucent ham. Like if you put it on a sandwich, you don't even taste it. Yeah, I'm not sure. I was glad that we got to the literally legal opinion because I think that's so necessary, again, for the English language to have that slap reason against media by right wing politicians or right wing news outlets. has been quite litigious in recent years, filing against even a parody Twitter account, Devin Nunes Cowell. The Trump campaign has filed lawsuits against news outlets based on articles and opinion

sections of the newspaper. This is an increasing wave. Now, most of these cases have been filed in jurisdictions where there is not a strong anti-SLAPP statute. In this jurisdiction, there was a strong anti-SLAPP statute. Making it all the more confounding as a legal choice. Exactly. Exactly. So can I give you a point of personal trivia before we move on to why you're wrong about law school? Yeah.

I have defended a celebrity in an anti-slap case. Yes. Maybe our definition of celebrity is different. Let's find out. So Bristol Palin used to have a reality TV show. And this is several years ago when the Palins were front and center in American political life. And I don't know if you remember, but there was a, you probably don't remember the ins and outs of Bristol Palin's reality TV show.

But there was an episode where a gentleman started absolutely berating her at a bar. Just awful. Berating her. And so that gentleman- Vaguely familiar. That gentleman, man, this has been many years ago. So I probably should have gone ahead and went back and looked back at the pleadings of the case.

But that gentleman filed a lawsuit against the production company and against Bristol for airing part of the footage. I mean, various things, various issues related to his appearance of the footage. I mean, various things, various issues related to his appearance on the show. And it got rapidly dismissed by California's anti-slap law. So I have affection in my heart for California's anti-slap law because of a long ago client. So. law because of a long ago client. So. Yeah, I think I'm gonna say no on the celebrity.

Hey. No. Wait. Yes. No. No. People, I mean, people rise and fall in fame. But celebrity has a certain meaning. I don't mean to represent someone who had fame at a certain time, but celebrity implies something that I'm just not willing to sign on to right now. All right. All right. Well, I'll allow it. Let's move on. Let's move on to the law school now. Okay. We had how, what's the origin suit? Who someone write in to us and ask us for our views or did this? They did. Yes. So, Sarah, your views on law school. Go. So, I get asked this a lot, right? Because I teach college students, undergrads, and many of them are considering law school. Uh, and so I get a lot of,

should I go to law school? And so let me give you a version of what I tell them. I loved law school. I had the best time in law school. I had a better time in law school than I did in college or high school, low bar. Um, and it was intellectually interesting. And so I'm glad I went. And that's an important caveat to what I'm about to say. Lawyers, for the most part, are not particularly happy people. And when you look at professions that have high levels, higher levels than they should of alcohol abuse, drug abuse, and other coping problems, I'm going to call them, lawyers stand out in the pack. And I think there's a reason for that. It's because a lot of people go to law school not wanting to be lawyers. But law schools are hammers and you, law students, are nails. And so they know how to make you into

lawyers. And that's what sort of the track you're on. And even at a place like Harvard, which you'd think would be sort of the most openly helpful to making non-lawyers or, you know, non-big law lawyers out of their school, I found it was still very tracked to go into big law. So I like to say that, like, when my section, which was about 79 people, about, that's, like, really specific, it was 79 people, you know, when we sort of, like, chit-chatted or raised our hands on the first day of, like, how many people plan to go into big law three years later, you know, like 50% of the class raised their hand. I think I was the only person right out who did not go to big law that I remember. Right. You know, of course, I'm sure it wasn't that

extreme, but, um, you know, I remember sitting for winter finals and everyone else was getting care packages from Cravath and Jones day with brownies and, you know, woolen mittens. And I was like shivering over in the corner with no care packages from my big law law firm. Um, and so there's just all this pressure. And then everyone says like, we'll just go for two years, pay off your debt, and then you can go do whatever you want. But there's golden handcuffs, but there's all, you know, well, I'll just stay one more year and make this amount of money. And when you've been making $185,000 as a 26 year old or whatever, straight out of law school, it makes it very hard to go take the job that I took out of law school, it very hard to go take the job that I took out of law school, which was so far under half of that one third of it. Yeah, I mean, to to make what a first year associate makes doing anything but be

a first year associate is impossible. Right. At that age. Right. So it's not that I tell people not to go to law school. It's that I ask them if they want to be lawyers. And so many of them don't. They just think like going to law school is a thing and then they'll figure it out later. And my point is, I guess I'm worried that those are the people who aren't happy practicing law and that I would like to see those people go do something more productive with their talents. Go to business school, start a business, go discover the cure to coronavirus, please. You know, Justice Scalia liked to say, we don't need more smart people arguing at the Supreme

Court. The justices are pretty smart. We could have, you know, slightly less high IQs arguing at the Supreme Court and our world would be just as good if those people would go discover the cure for coronavirus, our world would be significantly better. All right. So here is my thank you, Judge Isker, Judge French dissenting. so I think there, when I'm talking to people who are considering law school, there's category a, which is people who have a, wanted to be a lawyer. That's been a life's goal. That's been an ambition. Absolutely.

Go do it. Um, a lot of them have agree on that. Yeah. Yeah. Haven't a lot of them have enough sort of lawyer friends and family that can really help shepherd them and prevent the golden handcuffs. And they've seen it. They know it. They want it. Go. The people I talk to are often individuals who they don't have a career path. They have not been channeling into studying, you know, that they have not been channeling studying cures to viruses. They've not been

channeling studying, you know, putting men back in Americans back into space like the SpaceX folks are doing tomorrow. They may have a degree in the humanities. They don't have a great plan for their life. They don't really know what they want to do. And they consider law school. And my general know what they want to do, and they consider law school. And my general counsel to them is yes, for this very reason. I think in times of uncertainty, because this was my path to law school, frankly. I was graduating with a political science degree from Lipscomb University in Nashville. I didn't know what I wanted to do in my life. I really didn't know. And I thought when in the face of that ambiguity, I decided I need to take the option expanding choice. And the option expanding choice for a guy with a political science degree was a law school education. And everything you've

said about the golden handcuffs, about the way in which big law kind of extends its arms and grabs you is very true, especially in elite law schools. It's not true in all law schools, but especially in elite law schools, it's very true. And that once you're there, the golden handcuffs, golden handcuffs, I mean, they've even got like a cloth on the inside of them, so they don't really rub your wrists very much. They don't chafe. They don't chafe. All of that is absolutely true. But I look at my classmates. So I've been out of law school. I graduated in 1994. I keep up with a group of maybe around 15 of us real closely. That's my fantasy baseball league that we have drafted every year since 1992. Our second year of law school was our first fantasy baseball league

draft, and we've done it every year since. And so we keep up with each other. And I would say that group, the number of people engaged in the full-time practice of law as litigators is exactly two. One is a federal judge. There's a third who's a federal judge. I'll call that the full-time practice of law. But all the rest of us are doing all kinds of different things from producing movies, getting involved in Silicon Valley representing coaches and players as an agent, writing. I mean, all kinds of different things. It's really a remarkable diversity of professions. And you don't think there's any self-selection bias

that you happen to be friends with people who are more likely to leave Big Law? I'm sure there's like, you know, maybe a 1% self-selection. Oh, yeah. No, I think that it is with all the caveats that you have to realize and understand that you're choosing this as an option expanding choice. You should not immediately, if you get a great job as a young associate, ramp up your expenses to match your income, because that's the very definition of the golden handcuffs, because you find yourself discontent, and yet you cannot support your lifestyle any other way, that's your handcuffs right there. And then the chafing really starts. And we haven't even talked about how miserable billing hours is

and just the time being a first through, I don't even want to put a limit on the back end. Let's call it a first through sixth year associate. You don't have time of your own. That is true. You were at the beck and call of the emails on your cell phone. And I know that because my husband is a partner and I feel terrible for the associates. Oh, so Nancy and I got married. We'd known each other for, we had dated for six weeks. We were engaged for three months and I was working at a big firm that entire time. So it wasn't like we were spending a huge amount of time together. So, you know, I would come back. I would come back from the office at like 8 p.m. We'd hang

out for a little bit. And that was that. That was our relationship. So then we got married and moved to Manhattan, where I worked for a big firm in Manhattan. And I saw her so much less, so much less. There were many times when I would literally come home, literally in the literal sense of literally, I would literally come home way after, you know, after one or two in the morning, she was already sound asleep. I would get up before she woke up to go back to the office. And that would be day after day after day. I'll never forget one time I wrangled away from the office for some Saturday brunch. And so I'm leaving the office on Saturday to meet Nancy for sort of a late brunch. And the waiter asks her, how does your husband take his coffee? And her response is,

I don't even know if he drinks coffee. Perfect. That encapsulates all of it. But... Okay, let me, yeah. I got out. I got out. I found the key to the golden handcuffs. And I've had, you know, the opportunities that that law school education has afforded me were worth that experience. As I said, I loved law school. Also worth noting, the reason that I went to law school, since you mentioned the reason you went to law school, is that out of undergrad, I went and was a press secretary on the Hill for six weeks before I was fired. And I was like, oh shit, I need to have a backup plan. So that's why I went to law school.

But that's not a good reason. I knew I didn't want to be a lawyer. It is a good reason. It is. It's your option expanding choice. But let me also caveat this for any undergrads or we have a high school student who listens to this, by the way, who wrote me a great note. Hi. This is not me. I'm also against graduate degrees that are not hard, soft graduate degrees. I'll call them. Public affairs, public policy, squishy whatnots. I don't know what you really studied for a year or two because you weren't ready to leave college. I am for business school, medical school, a master's in a quasi-hard science, I'll put econ in that category, or a PhD in anything. Look, you have a PhD, great. You're an actual expert in something.

I'm good with that. You can even have a PhD in something soft and squishy. But when I'm looking to hire people, when I see squishy master's degrees, I think that they weren't eager to go into the workforce. They enjoyed school. And generally for the types of positions I hire for, I want people who love to work, you know, campaigns, politics. Like I want you to have been itching to get out of undergrad and to like get out and actually like get boots on the ground. and to like get out and actually like get boots on the ground. And so in law school is just like this, like, there are people who absolutely should go to law school. I loved law school.

Did I need to go to law school? I mean, obviously to do this podcast, I did. So I agree with you on PhDs. I have my favorite PhD is my dad, but I have a second favorite PhD in the United States is one, Shaquille O'Neal. Did you know that Shaq is a doctor? In what? He has earned his PhD. What did he get?

He got an MBA. It is, well, it's a doctorate, but it's the EDD. So he got his doctorate in education. I'll count it. I'll count it. Yeah, yeah, yeah, yeah. Yeah. Yeah, exactly. So, yeah, so he is Dr. Shaquille O'Neal, which means that when

basketball resumes Lord willing soon enough, but when basketball resumes and you're watching the inside, the NBA, the TNT crew with Sir Charles, it is Sir Charles, Kenny, EJ and Dr. Shaq. And I, I do wish they would pay the man the respect that he deserves and call him Dr. Schack. On this, we can agree. Indeed. Well, anything else regarding law school? And I just do want to reaffirm, I actually really, really enjoyed it. I really enjoyed law school. It's three of the best years of my life. I wonder if that's because both of us, A, we probably had sort of unknown expectations showing up at Harvard. I certainly never in my life expected to be on the campus of Harvard Law School and spent more or less all three years like looking around going,

years, like looking around going, whoa, like Keanu Reeves. That is exactly my experience. I was actually talking to my kids about that last night. And I said, there was not a moment that I was there that I took it for granted. And in fact, to like an irritating degree, I remember walking through the quad to pick up my first exam. It was a take-home exam in civil procedure. And I'm walking with friends from my section and we're all like on the knife's edge with our nerves. But then in a moment, I just like stopped and I said, stop y'all. And when everyone stopped and we're,

you know, there's the library was there, you know, we're pound, Harvard Law School campus is not much to look at. But the library is pretty cool. And I pointed at the library and I said, y'all, we're about to take an exam at Harvard Law School. This is so cool. And then they beat you up as a group. They're like, shut up.

No, but it's true. Like on some really cold day where the snow was piled like to my shoulder levels and they dug out like the channel on the sidewalk across the street from the law school on Mass Ave, I would walk through there. And you know, if you fell, like no one was going to find your body type thing. And I was just like, this is so cool. This is exactly like Legally Blonde. Oh, totally. It's a documentary. That's the best movie you can watch to prepare for the experience. Oh, totally. It's a documentary. That's the best movie you can watch to prepare for the experience. It actually kind of is. It really covered the types of students who are there in exaggerated form, but nevertheless. I read 1L by Scott Turow.

Same. Watched Paper Chase. Same. Because I'm pre-Legally Blonde era. Yes. Yeah. Yeah. And it was fading. It was not exact, the Socratic method. And how was the Socratic method when you were there? I had a professor call on me in contracts and he said, Ms. Isger, and I was not prepared. And so I looked behind me as if to also be looking for Miss Isger.

And he moved on. It was my proudest, like my whole 1L section thought that was the most ingenious thing anyone had ever done. That's hilarious. I would say about 60% of my professors had some form of Socratic method in the first year. Only one of them, the relatively more hardcore version of it, where you were going to get called on and he was going to stay with you until you messed up. And then that was his version. He's staying with you until you messed up and then he'd move on. He wouldn't berate you. He'd just move on.

So your symbol of how well you did was how long you were in the hot seat. And so it was this kind of thing where if somebody had one question and then it immediately went to the next one, after it was over, you'd put your arm around them. It's all right. It's okay. But then if you spent 30 minutes in the hot seat, people are practically carrying you on their shoulders out like you're Rudy at the end of the movie. No, I came in in the Kagan days where the sort of – this is a weird delineation, but sort of the KT boundary for dinosaurs, but at Harvard Law School is, were there tampons in the bathroom? And so I come in in the tampons in the bathroom era right after that started. And that was a big, big deal that marked the beginning of a steep incline in student happiness

and satisfaction. That's interesting. That's interesting. David is speechless. He's like, I don't know what to say about the tampons in the bathroom. I'm now sure that we've lost our listeners almost completely. But I have to end with my favorite quote, and it didn't happen in my section, but it raced like wildfire through the entire 1L population. It was a professor calls on a student, Socratic method, and here was the quote. So he asks a yes or no question, and the student responds, and here is the response from the professor. Mr. Smith says yes. Does anyone have a shorter and perhaps more accurate answer fantastic perfect we've now lost everybody sarah everyone's gone with we survey the ruins of our podcast and bid you all goodbye i hope the high school students still listening yes maybe we have

our high school senior thank you for Yes, maybe. We have our high school senior. Thank you for hanging in with us. And thank you as always for listening. This has been David French and Sarah Isger, and this is the Advisory Opinions Podcast. Bye.